Name of Case: Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component

Date of Decision: July 10, 2009

Supreme Court Panel: Chief Justice Beverley McLachlin, Justices Michel Bastarache, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron and Marshall Rothstein

Judgment under Appeal: Judgment of the B.C. Court of Appeal dated November 28, 2006

Facts: In preparation for the 2005 provincial election, in the summer and fall of 2004 the Canadian Federation of Students – British Columbia Component and the British Columbia Teachers' Federation sought to purchase advertising space on the sides of buses operated by the Greater Vancouver Transit Authority (TransLink), and by British Columbia Transit (BC Transit) which provides services outside the Greater Vancouver area. Both corporations had long earned revenue by selling and displaying advertising on the sides of buses.

The student group wanted to run two ads. The first said: "Register now. Learn the issues. Vote May 17, 2005. ROCK THE VOTE BC.com." The second ad said: "Tuition fees ROCK THE VOTE BC.com Minimum wage ROCK THE VOTE BC.com Environment ROCK THE VOTE BC.com." The Teachers' Federation wanted to run an ad saying: "500 fewer teachers, 114 schools closed. Your kids. Our students. Worth speaking out for."

Both transit authorities refused the ads pursuant to identical policies that permitted commercial, but not political, advertising. Article 2 of the policies provided that "[a]dvertisements, to be accepted, shall be limited to those which communicate information concerning goods, services, public service announcements and public events." Article 7 stated that "[n]o advertisement will be accepted which is likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy." Article 9 provided that "[n]o advertisement will be accepted which advocates or opposes any ideology or political philosophy, point of view, policy or action, or which conveys information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office."

Case History: The student federation and the teachers' union initiated an action in the British Columbia Supreme Court alleging that the transit authorities' policies had violated their right to freedom of expression guaranteed by s.2(b) of the Canadian Charter of Rights and Freedoms, which enshrines "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication."

In a 2006 decision, a B.C. Supreme Court judge dismissed the action, finding that since there was no history of permitting political or advocacy advertising on the sides of buses, the location was not "a public place." The British Columbia Court of Appeal overturned this decision, with a majority of the three-member panel holding that the lower court judge had erred in elevating the historical use of the sides of buses from a potential indicator of whether a place is a "public place" to an actual prerequisite for finding that it is. The Court of Appeal ruled that the Charter right had been infringed, since BC Transit and TransLink had a history of permitting advertising on their buses, and expression in this location could not therefore be viewed as inimical to the function of the buses as vehicles for public transportation. The transit authorities obtained leave to appeal this decision to the Supreme Court of Canada.

Issue(s): (1) Are BC Transit and TransLink "government entities" subject to the Charter? (2) Was the ban on political advertising a breach of s.2(b) of the Charter? (3) Was the ban on political advertising justified under s.1 of the Charter?

Supreme Court's Decision (8-0): Ruling that "[i]n exercising their control over such advertising, the transit authorities have failed to minimize the impairment of political speech, which is at the core of s.2(b) protection," the Supreme Court of Canada dismissed the appeal. (Justice Bastarache took no part in the judgment).

Reasons:

Are BC Transit and TransLink "government entities" subject to the Charter?

In a decision written on behalf of seven members of the Court, Justice Marie Deschamps held that both BC Transit and TransLink were subject to the Charter since they were both "government entities" within the meaning of s.32 of the Charter. In Deschamps' view, BC Transit was "clearly a government entity," since it was a statutory body designated by legislation as an "agent of the government;" the members of its board of directors were all appointed by the Lieutenant Governor in Council pursuant to the British Columbia Transit Act; and the Lieutenant Governor in Council had the power to manage BC Transit's affairs and operations by means of regulations. Asserting that "BC Transit cannot be said to be operating autonomously from the provincial government, since the latter has the power to exercise substantial control over its day-to-day activities," she held that BC Transit was "government" within the meaning of the Charter.

Similarly, Deschamps found that TransLink also operated as a "government entity," based on the fact that it was subject to substantial control in its day-to-day operations by the Greater Vancouver Regional District (GVRD), which was itself "government." In these circumstances, Deschamps held, the creation of TransLink by statute and the "partial vesting by the province of control over the region's public transit system in the GVRD" could not have the effect of permitting the government to avoid its Charter obligations, as this would be contrary to the Charter. Concluding that TransLink, while not itself an agent of the government, nonetheless qualified as a "government entity," Deschamps asserted: "The devolution of provincial responsibilities for public transit to the GVRD cannot therefore be viewed as having created a 'Charter-free' zone for the public transit system in Greater Vancouver."

Was the ban on political advertising a breach of s.2(b) of the Charter?

On the question of whether the agencies' policies prohibiting 'political advertising' constituted a breach of the guarantee of freedom of expression in s.2(b) of the Charter, Deschamps considered that "[w]hile it is true that buses have not been used as spaces for ... expressive activity for as long as city streets, utility poles and town squares, there is some history of their being so used, and they are in fact being used for it at present. As a result, not only is there some history of use of this property as a space for public expression, but there is actual use – both of which indicate that the expressive activity in question neither impedes the primary function of the bus as a vehicle for public transportation nor, more importantly, undermines the values underlying freedom of expression."

Justice Deschamps further reasoned that "[t]he bus is operated on city streets and forms an integral part of the public transportation system. The general public using the streets, including people who could become bus passengers, are therefore exposed to a message placed on the side of a bus in the same way as to a message on a utility pole or in any public space in the city. Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings. Thus, rather than undermining the purposes of s.2(b), expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self-fulfillment."

Deschamps concluded in this regard that "I do not see any aspect of the location that suggests that expression within it would undermine the values underlying free expression. On the contrary, the space allows for expression by a broad range of speakers to a large public audience and expression there could actually further the values underlying s.2(b) of the Charter. I therefore conclude that the side of a bus is a location where expressive activity is protected by s.2(b) of the Charter. Consequently, I conclude that since the transit authorities' policies limit the [students' and teachers'] right to freedom of expression under s.2(b), the government must justify that limit under s.1 of the Charter."

Was the ban on political advertising justified under s.1 of the Charter?

Section 1 of the Charter provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

As the Court noted in the Oakes case, [1986] S.C.J. No. 7 (QL), to satisfy s.1, the following must be established: (1) the government's objective in enacting the law must be "pressing and substantial" according to the values of a free and democratic society, so as to warrant overriding a constitutionally protected freedom; (2) there must be a "rational connection" between the means chosen to achieve the objective and the objective itself; and (3) the means chosen must "impair as little as possible" the Charter right or freedom in question.

(a) Was the ban a "law" within s.1 of the Charter?

Turning to a consideration of s.1, Deschamps first addressed the question of whether the limits imposed by the impugned policies were "prescribed by law." She concluded that they were. First, the policies were not merely "administrative in nature," as they were not meant for internal use as an interpretive aid: "Rather, the policies are themselves rules that establish the rights of the individuals to whom they apply." Moreover, Deschamps held, the policies "can be said to be general in scope, since they establish standards which are applicable to all ... rather than to a specific case." Finally, she ruled, the policies satisfied the criterion of being sufficiently "accessible and precise," since they were "made available to members of the general public who wish to advertise on the transit authorities' buses, and they clearly outline the types of advertisements that will or will not be accepted." Thus, she concluded, "[t]he limits resulting from the policies are therefore legislative in nature and are 'limits prescribed by law' within the meaning of s.1 of the Charter."

(b) Was the ban rationally connected to an important objective?

Deschamps next considered whether the limits on political content imposed by the authorities' policies were rationally connected to important objectives. While accepting "that the policies were adopted for the purpose of providing 'a safe, welcoming public transit system' and that this is a sufficiently important objective to warrant placing a limit on freedom of expression," Deschamps declared: "I am not convinced that the limits on political content imposed by articles 2, 7 and 9 [of the policies] are rationally connected to the objective. I have some difficulty seeing how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users. It is not the political nature of an advertisement that creates a dangerous or hostile environment. Rather, it is only if the advertisement is offensive in that, for example, its content is discriminatory or it advocates violence or terrorism – regardless of whether it is commercial or political in nature – that the objective of providing a safe and welcoming transit system will be undermined."

(c) Was the ban proportional?

As to the requirement of proportionality, Deschamps added that "[h]ad I found a rational connection between the objective and the limits imposed by articles 2, 7 and 9, I would nevertheless have concluded that the means chosen to implement the objective was neither reasonable nor proportionate to the [students' and teachers'] interest in disseminating their messages pursuant to their right under s.2(b) of the Charter to freedom of expression. The policies allow for commercial speech but prohibit all political advertising. In particular, article 2 of the policies limits the types of advertisements that will be accepted... Article 7, on the other hand, refers to prevailing community standards as a measuring stick for whether an advertisement is likely 'to cause offence to any person or group of persons or create controversy'. While a community standard of tolerance may constitute a reasonable limit on offensive advertisements, excluding advertisements which 'create controversy' is unnecessarily broad. Citizens, including bus riders, are expected to put up with some controversy in a free and democratic society. Finally, article 9 represents the most overt restriction on political advertisements, as it bans all forms of political content regardless of whether the message actually contributes to an unsafe or unwelcoming transit environment."

Conclusion

In the end, Justice Deschamps determined that "the policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse." She summed up her ruling that the transit authorities' policies were in breach of s.2(b) of the Charter, and could not be justified under s.1, as follows: "[A]dvertising on buses has become a widespread and effective means for conveying messages to the general public. In exercising their control over such advertising, the transit authorities have failed to minimize the impairment of political speech, which is at the core of s.2(b) protection. I conclude that, to the extent that articles 2, 7 and 9 prohibit political advertising on the sides of buses, they place an unjustifiable limit on the respondents' right under s.2(b) of the Charter to freedom of expression."
In the result, the impugned policies were declared to be of no force and effect.

Justice Fish wrote concurring reasons, agreeing with Justice Deschamps that (1) the appellants' impugned advertising policies infringed the respondents' freedom of expression and thereby contravened s.2(b) of the Charter, and that (2) the appellants did not demonstrate that the infringing provisions of their advertising policies were demonstrably justified in a free and democratic society. Focusing on s.1 of the Charter, Fish offered as the reason for his conclusion the fact that "[the] rejection of the respondents' proposed advertisements ... was not merely an effect of the restrictive advertising policies; rather, it was their very purpose," stating: "It is essentially on this basis that I would dismiss the appellants' appeal."

Justice Fish also addressed the transit authorities' argument that two internal exceptions to the guarantee of freedom of expression under s.2(b) applied in this case – the significant burden exception (according to which the government cannot be required to make significant public expenditures to satisfy all Charter claims), and the "manifest incompatibility" exception (according to which proposed advertisements must not be manifestly incompatible with the space where they would appear). With respect to the first exception, Fish rejected the appellants' submission that a significant burden would be imposed by having to rewrite the advertising policies, negotiate new advertising contracts, and install and provide space and maintenance for the ads, concluding that these activities "do not impose on the Transit Authorities a significant burden within the meaning of that phrase in the context of a s.2(b) claim under the Charter." With respect to the second exception, Fish concluded that "[a]dvertisements conveying a political message are not incompatible – let alone manifestly incompatible – with a commercial and public service advertising facility of that sort. Having chosen to make the sides of buses available for expression on such a wide variety of matters, the Transit Authorities cannot, without infringing s.2(b) of the Charter, arbitrarily exclude a particular kind or category of expression that is otherwise permitted by law," adding that "there is [also] no inherent conflict between political advertisements on the sides of buses and orderly transportation."

Lancaster Reference: For analysis of the Supreme Court of Canada's decision, see Lancaster's Human Rights and Workplace Privacy E-Bulletin, August 6, 2009, Issue No. 124.

Full text of the decision: http://onlinedb.lancasterhouse.com/images/up-SCC_Vancouver.pdf